Country report: Germany

EUDO C

itizEnship

O

bsErvatOry

C

ountry

r

eport

: G

ermany

Kay Hailbronner

January 2010

Report on Germany

Kay Hailbronner

EUDO Citizenship Observatory

Robert Schuman Centre for Advanced Studies

in collaboration with

Edinburgh University Law School

Country Report, RSCAS/EUDO-CIT-CR 2010/15 Badia Fiesolana, San Domenico di Fiesole (FI), Italy

requires the consent of the authors. Requests should be addressed to eucitac@eui.eu

The views expressed in this publication cannot in any circumstances be regarded as the official position of the European Union

Published in Italy European University Institute

Badia Fiesolana

I – 50014 San Domenico di Fiesole (FI) Italy

www.eui.eu/RSCAS/Publications/ www.eui.eu

cadmus.eui.eu

Research for the EUDO Citizenship Observatory Country Reports has been jointly supported by the

European Commission grant agreement JLS/2007/IP/CA/009 EUCITAC and by the British Academy Research Project CITMODES (both projects co-directed by the EUI and the University of Edinburgh).

The financial support from these projects is gratefully acknowledged.

Kay Hailbronner

1 Introduction

The new millennium marked a major change in German nationality law. The nationality law of 1913 (Reichs- und Staatsangehörigkeitsgesetz), valid from the German Empire through the Third Reich and the Federal Republic—which was subject to many changes and amendments was replaced by a new nationality law, the Nationality Act,1 which entered into force on 1 January 2000.

The new nationality law was the result of a highly controversial debate between the major political parties in 1998, preceding federal parliamentary elections. Although in many respects still based upon the provisions of the law of 1913, the new nationality law

(Staatsangehörigkeitsgesetz) has taken up the trend of some of the more recent European nationality laws by substantially facilitating naturalisation; by including a stronger toleration of dual nationality; by a replacement of discretionary regulations with individual rights; by

introducing new modes of acquisition and, in particular, by introducing a ius soli element into German nationality law.

As indicated by the Act’s name, German nationality law refers to the term

Staatsangehörigkeit—i.e. nationality—instead of Staatsbürgerschaft which may be translated as ‘citizenship’. Staatsbürgerschaft has a somewhat stronger political connotation and may refer particularly to the substantial democratic rights and obligations related to the legal status. Following the German legal terminology the term ‘nationality’ will be used in the following report.

2 Historical background and recent evolutions 2.1 German nationality law until 2000

The German Nationality Law (Reichs- und Staatsangehörigkeitsgesetz) of 22 July 1913 introduced for the first time a common German nationality for all the nationals of the various states constituting the ‘German Reich’ of 1870. The German nationality did not fully replace the nationality of each of the states of the federation, but in fact supplemented it. German nationality under the Constitution of 1919 provided that every national of a federal state simultaneously acquired German nationality. Each German was granted the same rights and duties, every German inside and outside the territory of the German Empire was entitled to protection, and nationals were not allowed to be extradited to any foreign government for the purpose of punishment or persecution.

Under the rule of the Nazi regime the German nationality law was repeatedly changed,

primarily for ideological and racial reasons. One of the first measures was the abolition of the nationality of the Länder as a result of the establishment of Germany as a unitary state. The law of 14 July 1933 provided for the withdrawal of naturalisations granted during the period

between 1918 and 1933 and the removal of German citizenship from persons having violated a duty of loyalty to the German Empire or the ‘German nation’. According to further regulations, all Jews having their ordinary residence abroad were collectively deprived of citizenship.

As a result of the ‘reunification’ with Austria and the territorial acquisitions from 1933 to 1941 in Eastern Europe, German nationality was generally granted collectively to persons considered as ethnic Germans living in the territories incorporated into the German Reich or attached as protectorates to the Empire (Hailbronner & Renner 2005: 16). Another reason for collective acquisition of German nationality was to facilitate admission to the Wehrmacht, SS, police or Nazi organisations, provided that the persons were of German ethnic origin.

The Federal Republic of Germany of 1949 decided to base its nationality law upon the nationality law of 1913, rather than enacting a completely new law. In addition to regulations and changes made by the Allied Powers from 1945–1949, the nationality law of 1913 was substantially changed by three amendments, in 1955, 1956 and 1957. The first Act, amending the Nationality Act of 1913, abolished collective naturalisations between 1938 and 1945. The validity of such collective naturalisations had been a matter of dispute in the jurisprudence and literature of the Federal Republic (Hailbronner & Renner 2005: 63; Genzel 1969a: 113; Genzel 1969b: 98). By the second law of 1956 (Makarov 1956: 744), the collective acquisition of German nationality by Austrians was abolished. Austrians, however, could reacquire German nationality by declaration if they had established permanent residence in Germany by that time.

The third law of 1957 and the subsequent legislation of 1969 established equal treatment of men and women in relation to the acquisition of German nationality by spouses and

descendants of German nationals.

Between 1969 and 1990, the debate on German nationality was very much focused upon issues concerning the separation of Germany. While originally the law of the German

Democratic Republic (GDR) provided for a common German nationality, in 1967 with the adoption of the Staatsbürgerschaftsgesetz of the GDR the idea of a common German

nationality was relinquished and replaced by a separate citizenship of the GDR. The Federal Republic of Germany reacted by insisting upon a common German nationality, based upon the Reichs- und Staatsangehörigkeitsgesetz of 1913. Thereby, every German, acquiring German nationality by descent, was still to be considered as a German national, regardless of whether the person had his or her permanent residence in the Federal Republic or the GDR. The legal basis for this position was the insistence upon an inseparable common German nationality attached to the legal continuation of the German Empire.2 This concept enabled the Federal Republic to issue passports and to claim as German citizens every citizen of the GDR who managed to legally or illegally leave the territory of the GDR and arrive at a consulate or

embassy of the Federal Republic of Germany (Hailbronner 1981: 712-713; Vedder 2003: 11 ff.; Klein 1983: 2289).

The Treaty on the Basic Relations between the Federal Republic of Germany and the GDR of 12 December 1972 (Grundlagenvertrag) as well as the treaties with the Soviet Union and Poland of 1970 and Czechoslovakia of 1973 left out the controversial issue of German nationality. In a protocol it was explicitly stated in the Grundlagenvertrag that the treaty will facilitate a solution to issues of nationality. The Federal Constitutional Court held that these treaties could not be interpreted as causing a loss of nationality for Germans who acquired

German nationality under the nationality law of 1913 or under the Basic Law.3

After the reunification of Germany on 3 October 1990, the East German laws and regulations on nationality were abolished. With the accession of the GDR to the Federal

Republic the nationality legislation valid in the Federal Republic became fully applicable in the territory of the former GDR and in Berlin. A number of questions, however, remained to be solved concerning the effects of naturalisations and other issues related to the effects of the East German nationality legislation (Renner 1999: 230). These issues have not yet been completely solved.

Subsequent changes to the nationality legislation were primarily devoted to a solution to the problem of integration of the immigrant population by facilitating access to German

nationality. In the early 1990s a discussion started about the political rights of the immigrant population. By the end of 1998 there were 7.32 million foreign nationals living in Germany, accounting for 9 per cent of the German population. Most foreigners living in Germany had been living there for many years. By the end of 1997, approximately 30 per cent of all

foreigners had been in Germany for twenty years or more, 40 per cent for at least fifteen years and almost 50 per cent for more than ten years. Almost two thirds of all Turks and Greeks, 31 per cent of Italians and 80 per cent of Spaniards had lived in Germany for more than ten years and 1.59 million (21.7 per cent of all foreigners) had been born in Germany.

The figures showed a basic dilemma of German immigration policy: an increasing number of children of migrant workers were born and had grown up in Germany, received their schooling and professional education in Germany, would eventually work in Germany and yet were children of ‘foreign’ nationals (this despite the fact that their nationality has frequently become only an emotional attachment to the home country of their parents, and is sometimes considered a mere reassurance, a sort of ‘alternative’ nationality). There is in principle no dispute about the need to integrate large parts of the foreign population into Germany by inducing them to become German citizens. All German governments have declared that there is a public interest in the naturalisation of foreigners living permanently in Germany.4 There is no consensus, however, on the ways and conditions under which German citizenship should be acquired.

The particular issue was the acquisition of German citizenship by birth on German territory, which introduced an element of ius soli into the German concept of citizenship and which has given rise to a heated controversy between the major political parties in recent years.

An attempt was made in some of the Länder to solve the fundamental dilemma arising from the exclusion of a substantial part of the population from political rights by granting limited voting rights at a local level to foreigners. This failed due to the decision by the Federal Constitutional Court declaring such an attempt to be unconstitutional.5 The Court stated that the concept of democracy as laid down in the Basic Law does not permit a disassociation of

political rights from the concept of nationality. Nationality therefore is the legal prerequisite for the acquisition of political rights, legitimising the exercise of all power in the Federal Republic of Germany. The Court, however, also stated that the only possible approach to solving the gap between the permanent population and democratic participation lies in changing the nationality law, for example, by facilitating the acquisition of German nationality by foreigners living permanently in Germany and thereby having become subject to German sovereignty in a manner comparable to German nationals.

3

Decisions of the Federal Constitutional Court, vol. 40, p. 141; vol. 41, p. 203.

4 _{See for example the statement of the Federal Government in: Bundestagsdrucksache (Official Records of the}

Bundestag), No. 10/2071.

In the context of the general debate about Germany’s immigration policy and its factual change into an immigration country, pressure increased for a reform of German citizenship legislation. There were numerous proposals ranging from simplifying the naturalisation process and increasing the acceptance of multiple nationality to introducing a ius soli principle for third-generation foreigners born in Germany (Apel 1992: 99; Blumenwitz 1993: 151; Hobe 1994: 191; d’Oliveira 1990: 114; John 1991: 85; Löwer 1993: 156; Lübbe-Wolff 1996: 57; Mangoldt 1994: 33, Marx 1997: 67; Meireis 1994: 241; Münch 1994: 1199; Predeick 1991: 623; Renner 1994: 865; Schrötter & Möhlig 1995: 437).

The Bundestag decided in 1990 to substantially facilitate the acquisition of German citizenship for young foreigners aged sixteen to 23, provided that they renounced their previous citizenship, had lived permanently and lawfully in Germany for eight years, had attended a school in Germany for at least six years and had not been prosecuted for a criminal offence. In addition, the acquisition of German citizenship for the first generation of recruited migrant workers was also facilitated substantially, provided that certain requirements were met:

—legal habitual residence in Germany for fifteen years, —renunciation of previous nationality;

—absence of criminal conviction; —ability to earn a living.

Originally, facilitated naturalisation of young foreigners and of longterm residents was granted ‘as a rule’, i.e., administrative discretion was very limited. Another amendment in June 1993 changed these rules by establishing an individual right entitling every foreigner fulfilling the aforementioned requirements to demand naturalisation (Hailbronner 1999b: 1).6 Although these provisions of the Aliens Act granting an entitlement to German citizenship required renunciation of previous nationality, a number of exceptions were made which led in fact to a steadily increasing number of naturalisations with dual nationality. Exceptions were granted, for instance, if a foreigner could not renounce his or her previous nationality or only under particularly difficult conditions, e.g., if the original home country required military service before giving up nationality.

The general number of naturalisations in 1995 increased to 313,606 compared to 34,913 in 1985 (in 1997, however, the number decreased to 278, 662). However, it must be taken into account that this figure includes a substantial number—up to three-quarters—of naturalisations of German repatriates (Aussiedler) who acquire German citizenship very easily on the basis of Article 116 of the Basic Law in connection with the Expellees Act, giving them a constitutional right to obtain German citizenship as a refugee or expellee of German ethnic origin or as their spouse or descendant, provided that they had been admitted to the territory of the ‘German Reich’ within the frontiers of 31 December 1937. Nevertheless, in 1990, naturalisations based upon the provisions of the Aliens Act for the immigrant population increased at a rate of about 35 per cent, in 1994 at a rate of 54 per cent and in 1996 by 20 per cent compared to the

preceding year (Beauftragte der Bundesregierung für Ausländerfragen 1999: 11); in 1997, however, the number of naturalisations decreased by about 4 per cent. With Germany having 1.18 per cent of the total foreign population of Europe, the rate of naturalisations in 1996 was still relatively small compared to other western European states, although it had quadrupled since 1986.7 The share of women was substantially higher with 1.37 per cent than that of men with 1.03 per cent.

6 _{This was part of the so-called Asylkompromiss, Bundesgesetzblatt (Federal Law Gazette), vol. I, p. 1062.} 7 _{Ethnic Germans are not included in this rate of naturalisation.}

According to an agreement between the Christian Democratic Party and the Liberal Party of 1994, the introduction of a special nationality for children (Kinderstaatszugehörigkeit) of the third generation who were born in Germany was envisaged.8 In order to be eligible for this special nationality, which was intended to ensure equal treatment between German

nationals in the issuing of German identity cards, at least one of the child’s parents would have to be born in Germany and both would have to reside lawfully in Germany during the ten years preceding the child’s birth. Additionally, both parents would have to be entitled to an unlimited residence permit. The ‘quasi-nationality’ for children would require an application by parents before the child’s twelfth birthday. With the child’s eighteenth birthday, the young adult would acquire full German nationality upon renouncing his or her prior nationality. It is very doubtful whether the proposal was practicable and whether a ‘quasi-nationality’ would have been acceptable in international relations and what effect such a special nationality might have had, for instance, with regard to the application of international treaties relating to visa and travel documents (Europäisches Forum für Migrationsstudien 1995: 11, 19; Lübbe-Wolff 1996: 57; Ziemske 1995: 380, 381). The proposal was never realised nor any of the other proposals, due to political developments in the Bundestag and Bundesrat.

Following a shift of power in the Länder in 1999, the Bundesrat, the upper house of Parliament, representing the German Länder, which were then dominated by the Christian Democratic Party, suggested that German nationality would be acquired automatically by a child whose foreign parents were born in Germany and who, at the time of the child’s birth, had a valid residence permit.9 Children whose parents were in possession of an unlimited residence permit and have been living in Germany for five years were to be given a right to naturalisation. In both cases, the acquisition of German citizenship would not require the renunciation of previous nationality.

The proposals of the Social Democratic Party and the Green Party were going in the same direction. The Social Democratic Party suggested supplementing the principle whereby German nationality is acquired by descent (ius sanguinis) with the principle of territoriality (ius soli). Children of foreign parents therefore ought to automatically acquire German citizenship as a result of birth on German territory, provided that at least one parent has been born in Germany and has secured his or her permanent residence in Germany. Dual nationality is not to be prevented in such cases. Additionally, for permanent residents, individual rights to the acquisition of German nationality were to be created independently of renunciation of their previous nationality. The draft suggested a facilitation of naturalisation for the following groups of citizens:

—foreigners with a permanent residence permit after eight years of residence,

—foreigners belonging to the so-called second generation aliens who have grown up in Germany,

—spouses of Germans after three years of lawful residence, provided that they have been married for at least two years.

8

As to the coalition agreement see Eylmann (1995:161, 163); Leutheuser-Schnarrenberger (1995: 81, 85); Ziemske (1995: 80) and the Plenarprotokoll des Deutschen Bundestages (Parliament’s Plenary Protocol), No. 13/18, p. 1217.

Additionally, the proposal provided for a facilitation of discretionary naturalisation, which would be enabled after a residence of five years and only be dependent upon the capacity to earn a living, absence of a criminal conviction for a serious offence and absence of a reason for expulsion for endangering public safety or violent behaviour.10

Following another shift in the distribution of political power in the Federation and the Länder, the proposal could not be realised: the Christian Democratic Parties had won some state elections and it became uncertain whether the draft bill would receive a majority in the Bundesrat. A ‘compromise’ was worked out by the Liberal Party, which provided for the acquisition of full nationality by birth on German territory if both parents apply and at least one of the parents has a right of residence in Germany. The proposal of the Liberal Party suggested a loss of dual nationality by obliging the naturalised person to opt for one nationality once that person has reached the age of 21. If the previous (dual) nationality were not given up, German nationality would be lost.11

A renewal of the discussion was provoked when the coalition agreement between the Social Democrats and Bündnis ’90/Die Grünen of 20 October 1998 was presented to the public. According to the intentions of the coalition, German citizenship should be conferred at birth to children born on German territory if one foreign parent was born on German territory or if he or she had entered Germany before the age of fourteen, furthermore requiring that, in both cases, he or she at the time of birth is in possession of a residence permit (Aufenthaltserlaubnis). Other amendments intended by the coalition were a facilitation of the naturalisation process when applying on the grounds of an entitlement to German citizenship. It was proposed that naturalisation be allowed if a foreigner was able to sustain himself or herself and his or her dependants, if there were no convictions for criminal offences and, finally, if no grounds for expulsion or deportation had arisen; the residence requirement was to be reduced from fifteen to eight years. Other proposed amendments related to a right to naturalisation for minors and a reduction of the residence requirement to three years for spouses of German nationals. Dual or multiple nationality was to be accepted in all these cases (Hailbronner 1999a: 51).

2.2 The nationality law reform of 2000

These proposals met heavy resistance by some of the Länder, particularly since the first draft presented by the Ministry of the Interior provided for a broad acceptance of dual and multiple nationality and the introduction of the ius soli principle.12 Due to changing majorities in Parliament a new proposal was submitted by the Social Democrats, Bündnis ’90/Die Grünen and the Liberal Party (FDP) comprising not only the introduction of the ius soli principle, but also the insertion of the ‘optional model’. Both chambers went on to adopt this draft with minor changes13 in May 1999.14 The new law on the reform of the German citizenship law of 15 July

10 _{Bundestagsdrucksache (Official Records of the Bundestag), No. 13/259.} 11

On the optional model see the report by the Reference and Research Services of the Bundestag (eds.), No. WF III-49/99 of 10 October 1996.

12 _{Zeitschrift für Ausländerrecht 1999, 50: ZAR-Nachrichten: ‘Zuwanderung, Integration und Reform des}

Staatsangehörigkeitsrechts’; Barwig, Brinkmann, Hailbronner, Huber, Kreuzer, Lörcher & Schumacher 1999.

13

Bundestagsdrucksache (Official Records of the Bundestag), No. 14/867.

14 _{Plenarprotokoll des Deutschen Bundestages No. 14/40, p. 3415 ff.; Bundesratsdrucksache (Records of}

the Bundesrat) No. 296/99; on the consultation of the Committee on the Interior see

1999 entered in force on 1 January 2000.15 In addition, administrative guidelines for its application were to be adopted.

One of the major changes was the introduction of the ius soli principle in Article 4 of the German Nationality Law implying that a child of foreign parents acquires German citizenship under the ‘optional model’ on the condition that one parent has legally had her habitual resi-dence in Germany for eight years and that he or she has been in the possession of a resiresi-dence permit, an Aufenthaltsberechtigung or an unlimited Aufenthaltserlaubnis for three years; the model of the ‘double ius soli’ in force in some other European states has therefore not been introduced. Foreign children legally residing in Germany were entitled to naturalisation upon their tenth birthday if the above-mentioned conditions were fulfilled at the time of birth (para. 40b StAG; transitional regulation which expired on 31 December 2000). Due to the fact that children usually acquire the nationality of their parents by descent, the introduction of the ius soli principle will entail at least double if not multiple nationalities for foreign children born in Germany. Thus, para. 29 StAG introduced the highly disputed optional model and the

obligation to decide upon reaching the age of eighteen which nationality to keep and which to renounce. If the young adult declares that he or she intends to keep his foreign nationality or if he or she does not declare anything on reaching the age of eighteen, he or she will lose his or her German nationality. If, on the other hand, he or she declares an intention to keep German citizenship, the young adult is obliged to prove the loss or renouncement of the foreign

nationality (para. 29 (2) StAG) unless German authorities have formally approved that he or she may keep his foreign nationality. According to para. 29 (4) StAG, this permission to retain the former nationality (Beibehaltungsgenehmigung) is to be issued if renunciation of the foreign nationality is either impossible or unreasonable or if—in the case of naturalisation—multiple nationality would be accepted according to the general rules.

Aside from the introduction of the ius soli principle the naturalisation process has also been facilitated. The foreigner is entitled to naturalisation after a residence period of eight instead of fifteen years on the condition that he or she declares himself bound to the free and democratic order of the Constitution (freiheitliche und demokratische Grundordnung), that he or she is in possession of a residence permit, that he or she is capable of earning a living without any recourse to public assistance or unemployment benefits (except in those cases in which the dependence on those benefits is not attributable to the applicant’s fault or

negligence), that there is no criminal conviction and, finally, that loss or renunciation of the previous nationality occurs. Dual nationality is accepted in more cases, e.g., if the applicants are elderly persons and dual nationality is the only obstacle to naturalisation, if the dismissal of the previous nationality is related to disproportionate difficulties, and if a denial of the application for naturalisation would constitute a particular hardship; moreover, double nationality is accepted in cases in which the renunciation of the previous nationality entails—in addition to the loss of civil rights—economic or financial disadvantages, or (generally in the case of EU citizens) provided that reciprocity exists.

15 _{Bundesgesetzblatt (Federal Law Gazette), vol. I, p. 1618; on the amendments see Hailbronner 1999c;}

; Huber &

Due to the fact that the acquisition of German citizenship has been facilitated, some amendments relate to the loss of German citizenship and the limitation of acquisition by descent. Acquisition of German citizenship abroad is excluded if the German parent who has his or her habitual residence abroad was born abroad after 31 December 1999, except in those cases that would result in statelessness. Despite this provision, the acquisition of German citizenship remains possible if both parents are in possession of German citizenship or if the one parent who has German citizenship notifies the competent diplomatic representation at the time of birth.

2.3 The Immigration Act of 2004

The law reform of 1999/2000 was considered as part of a major reform of nationality law. The intention was to make further revisions in a two-phase procedure for adjusting the nationality law to a new comprehensive migration policy and changes in the residence rights of EU

citizens. It was also intended to devise a special administrative law for nationality issues and to reform the legislation on repatriated Germans.

The Immigration Act of 2004 made some adjustments to the changes in immigration law but did not yet provide for further changes. One of the major features of the Immigration Act has been the emphasis upon integration requirements. Therefore, integration requirements have been introduced making the right to naturalisation dependent upon a proof of sufficient

knowledge of the German language. In addition, successful attendance at an integration

course—consisting of a language course and a course on basic facts of German history and the political system—reduces the required time of lawful residence for naturalisation from eight to seven years.

Major points of controversy were again the question of acceptance of dual nationality, the legal status of German repatriates and the conditions for the admission of repatriates, particularly regarding the proof of knowledge of the German language and diverse procedures for consulting with the secret services in the naturalisation proceedings.

Some changes were required by the new system of residence titles introduced by the new Immigration Act. Since the Immigration Act provides for a residence permit and a settlement permit as the only residence titles replacing a number of different titles under the Aliens Act of 1990, the nationality law requirements had to be adjusted to the new system with the requirement of a settlement permit in those cases in which an unlimited residence permit was previously necessary. The Immigration Act has also abolished the EU residence permit. Therefore, the new provision now requires only the right of freedom of movement, which is certified by a formal declaration to EU citizens upon taking up residence in Germany. EU citizens remain privileged with regard to naturalisation. Already under the law of 1999, EU citizens were entitled to naturalisation without renouncing their previous nationality provided that reciprocity was granted. The issue as to under what conditions reciprocity is granted had been a matter of controversy between the Länder. Some of the Länder have required that reciprocity only be guaranteed if another EU Member State provides the right to naturalisation. Other Länder considered it sufficient if a German national was in fact naturalised without the requirement of giving up German nationality. The matter was finally settled by a decision of the Federal Administrative Court deciding in favour of a more liberal interpretation which states that reciprocity does not require a formal similarity in terms of granting an individual right to naturalisation if in fact German nationals will be naturalised without having to renounce their

German nationality.16

In principle, the provisions on ius soli acquisition have remained largely unchanged. A request by the opposition parties, to replace the provisions on ius soli acquisition by a more restrictive rule whereby only children whose parents were born in Germany should be entitled to ius soli acquisition of German nationality, did not receive a majority in the Bundestag.17

Naturalisation under Section 8 of the nationality law is in principle dependent upon the non-existence of a reason which would justify expulsion and on the capability to earn a living. The Immigration Act has considerably expanded previously existing possibilities for making exceptions to these requirements. Previously, it was only possible to make an exception to the requirement of the capability of earning a living in the case of aliens up to the age of 23 or aliens who were unable to earn a living through no fault of their own. The new provision

provides discretionary exceptions for reasons of public interest or to avoid a particular hardship. This enables a considerably larger amount of discretion (Renner 2004:176, 179). The particular hardship clause requires unusual disadvantages or difficulties in the case of non-naturalisation.

Since the new provisions enable a weighing of interests (public interest or particular individual hardships) it will be possible to take into account the reasons for dependence on social benefits and the degree of dependence on social welfare. Similar considerations apply when making an exception to the requirement of the absence of criminal conviction. The discretionary clause, however, applies only if there is no individual right to naturalisation under Section 10 of the law. Section 12a gives an implicit indication of the kinds of criminal

convictions which will be tolerated.

A declaration of loyalty had already been introduced by the reform of 1999. The new Section 37 requires that the naturalisation authorities have to submit the personal data of any applicants who have reached the age of sixteen to the secret services.

The law reform of 1999/2000 was accompanied by a political decision to renounce the 1963 Convention on Dual Nationality, which provides only for a very restricted acceptance of dual nationality. By signing the European Convention on Nationality on February 2002, Ger-many subscribed to the basic principles of the European Convention on Nationality allowing states party in Article 14 to provide for dual nationality for children automatically acquiring the nationality of a host state at birth and for married partners possessing another nationality. In addition, Article 15 in other cases leaves it up to the contracting states to allow, under its internal laws, multiple nationality if its nationals acquire or posses the nationality of another state.

With regard to the loss of nationality, the optional model, in the view of the German government, required a reservation to the European Convention on Nationality whereby Germany declared that loss of German nationality ex lege may, on the basis of the option provision in Section 29 of the Nationality Law (opting for either German or a foreign

nationality upon coming of age), be effected in the case of persons who, in addition to a foreign nationality, acquired German nationality by virtue of having been born in Germany. With re-gard to Article 7 para. 1 (f) and (g), Germany has also declared that loss of nationality may occur if, upon a person coming of age, or in the case of an adult being adopted, it be established that the requirements governing the acquisition of German nationality were not met.

16 _{Judgement of 20 April 2004, Deutsche Verwaltungsblätter 2004, vol. 22, p. 1430.} 17 _{Bundestagsdrucksache (Official Records of the Bundestag), No. 15/955, p. 38 ff.}

2.4 The 2007 reform of nationality law

The 2007 Act on implementing EU directives in the area of immigration and asylum law18 included a legislative reform of nationality law by a number of substantial changes although such changes were not related to the implementation of EU legislation. Some in the Federal Chamber and the literature (Sturm 2008: 129) were critical of the fact that the Act contained 24 amendments to the nationality law. Some have argued that the combination of implementation of EU legislation with a somewhat controversial amendment to the nationality law was a tactical instrument to facilitate the adoption of a ‘package-deal’ which most deputies were neither willing nor able to raise openly (Sturm 2008: 129, 130). Some of the legislative changes were—although not required by changes to the immigration law—indirectly related to such changes, such as increased integration requirements, which had been introduced by the

immigration law reform of 2004. The focus of the legislative amendments was clearly on new provisions on the acquisition of German nationality by treatment as a German national for 12 years. According to the new Section 3 para. 2, German nationality is acquired by someone who has been treated by the German authorities for 12 years as a German national regardless of permanent domicile in Germany.19 The acquisition is valid ex tunc, dating back to the time at which German authorities for the first time treated a person as a German national, for instance at the occasion of a marriage, birth, adoption or naturalisation. Section 3 para. 2 mentions as relevant official acts the issuance of a nationality certificate or passport or identity card. The acquisition is also valid for descendants who derive their nationality from the person having acquired German nationality by way of being treated as a German national.

A further requirement is that the person in question is not responsible for the error of the authorities.20 In order to acquire German nationality by factual treatment as a German national, it is necessary that the person in question did not intentionally or by negligence cause the error. The explanatory comments to the draft legislation21 mention as examples the deceit or the concealment of relevant facts such as the reacquisition of a former nationality without having permission to maintain the German nationality according to section 25 para. 2 of the nationality law. Descendants having acquired German nationality by factual treatment cannot be made responsible for deceit or concealment by their parents (Sturm 2008: 131).

A second major topic was the change in the naturalisation requirements relating to standards of knowledge of the German language and the adoption of integration tests. The Federal Administrative Court in a judgment of 20 October 200522 decided that in order to fulfil naturalization requirements an applicant did not need to be able to write German provided that he or she was able to understand a simple text of daily life and to dictate letters in German (for a critical review see Hailbronner 2007: 201; Münch, 2007: 236). The amendment now requires sufficient knowledge of the German language by providing a certificate in German at level B of the Common European Reference Framework for Languages. Thereby it has been clarified that certain standards of oral as well as writing capacities are necessary in order to prove sufficient knowledge of the German language.23 There are exceptions for older people and juveniles, for sick persons and disabled persons. Persons beyond 16 years of age need to prove only language

18

EU-Richtlinienumsetzungsgesetz of 28 August 2007, BGBl. I, p. 1970.

19

For a historical model in the Prussian nationality legislation of 2 July 1812 which, however, has based the acquisition of a status as a Prussian subject on persons who had been settled for at least ten years in one of the Prussian states see Sturm, Das Standesamt 2008, p. 130 at fn. 11.

20

In German: ‘…. und dies nicht zu vertreten hat.’

21 _{BT-Drs. 16/5065, p. 227.} 22 _{BVerwGE 124, 268, 273.}

knowledge corresponding to his or her age. Older people, sick and disabled persons may be dispensed of the requirement to prove sufficient knowledge of the German language if they are not able to participate at language courses or acquire the language certificate.

New requirements are laid down in section 10 on the right to naturalisation. Whether corresponding requirements are also applicable with respect to a discretionary naturalisation under section 8 of the nationality law is somewhat unclear since there is no explicit provision to that extent in the law. For that reason it is sometimes assumed that in spite of the legislative amendment in Section 10 a discretionary legislation for persons who do not fulfil the language requirements was still possible . There are, however, good reasons for the contrary argument that it would be against the purpose of the legislative amendment to naturalise persons who do not fulfil the minimum language requirements under section 10 (Sturm 2008: 134). In addition, the legislative amendment was clearly intended to put an end to the diverse practices of the Länder with regard to the necessary level of knowledge of the German language. Therefore, the interior ministers in their decision of 4/5 May 2006 and 16/17 November 2006 agreed upon uniform standards with regard to language requirements, the introduction of integration tests and higher standards of law obedience. The legislative changes were intended to implement these decisions.

Integration tests and integration courses have been introduced in Section 10, para. 1 as requirements for a right to naturalisation under Section 10. As a rule, an applicant for

naturalisation may prove knowledge of basic facts of the political and social system and the living conditions in Germany24 by passing successfully a test, normally following an integration course. There are other possibilities to prove the necessary knowledge, for instance by

acquiring a German primary school certificate (Hauptschulabschluss). The courses are not obligatory. By law, the Federal Ministry of the Interior has been authorised to adopt a uniform integration test within the framework of the legislative provision on integration courses. Since the implementation of this provision required some time, the provision only entered into force on 1 September 2008. The integration test was adopted on 5 August 2008.25 The new

integration test provides for questionnaires with 33 questions, a passing grade being 17 or more questions correct. First experiences indicate that approximately 99 per cent of all applicants have passed the test. The Federal Government has indicated that it will evaluate the practical effects of the new rules on sufficient knowledge of the German language and of the integration courses and tests five years after entry into force of the law dated of 28 August 2007.26

In order to provide incentives for particular integration efforts the law also provides that the regular time in order to naturalise may be abbreviated from 8 to 6 years, particularly if the applicant proves a high level of knowledge of the German language.

The interior ministers in their meetings in 2006 criticised the existing barriers for naturalisation as too low with respect to criminal offences. The previous threshold of 180 daily fines27 has been reduced to 90 daily fines (Tagessätze) and with respect to imprisonment from six to three months imprisonment on probation. In addition, a multitude of small criminal sentences which are not beyond the threshold may now be added by the naturalisation

authorities. The law provides for a discretionary possibility to grant naturalisation in case of a court sentence only slightly beyond the threshold put down in the law. Other criminal court

24 _{In German: ‘Kenntnisse der Rechts- und Gesellschaftsordnung und der Lebensverhältnisse in Deutschland.’} 25 _{Verordnung zu Einbürgerungstest und Einbürgerungskurs (Einbürgerungstestverordnung) of 5 August 2008,}

BGBl. I, p. 1649.

26 _{See BR-Drs. 224/07 at p. 435.}

27 _{Regular punishments are either the imposition of a fine, determined by daily payments determined by regular}

sanctions such as withdrawal of a driver’s licence or a professional licence may—according to the discretion of the naturalization authorities—be taken into account to refuse naturalisation.

The amendment removes a privilege for applicants below the age limit of 23 years relating to the proof of having sufficient means for existence. In principle, the right to naturalisation under Section 10 of the nationality law does not cease to exist if an applicant becomes dependent upon social assistance or job seeker’s allowances provided that he or she cannot be made responsible for this situation. Until now, however, it has been a privilege for applicants below 23 years of age since they kept a right of naturalization even if they could be made responsible. According to the legislator the provision is counterproductive for integration efforts. A number of organisations representing the interests of migrant workers, however, have heavily criticised the new provision as making the integration of juvenile foreigners more difficult. It should be kept in mind, however, that even for applicants below the age limit of 23 who are entitled to financial assistance for professional education or study28 these restrictions are not applicable.

Substantial changes with regard to the acceptance of dual nationality were made with regard to EU nationals and Swiss citizens. Until 2007, dual nationality was accepted only under the condition of reciprocity with the EU country of origin of an applicant. The application of this provision created a substantial amount of legal difficulties. There were various

controversial decisions on what basis reciprocity could be examined if an EU Member State did in practice allow discretionary naturalisation on the basis of dual nationality, although the law provided in principle for a requirement of abandoning previous nationality. The application of these provisions not only caused diverse jurisprudence but also created administrative difficulty in finding out the practice and law of other EU Member States with regard to the grant of reciprocal treatment. The new legislation, therefore, has abolished the requirement of reciprocity. All nationals of EU Member States are entitled to acquire German nationality without having to renounce their previous nationality. As a consequence, German nationals who are applying for a nationality of an EU Member State or of Switzerland, are not required any more to apply for special permission to maintain their German nationality.

It has been frequently criticised that acquisition of German nationality has been reduced to a very informal bureaucratic procedure, which is not suitable to show new German nationals the importance of nationality. The interior ministers in their meeting in May 2006 in principle agreed on a more formal procedure although no agreement could be reached on the introduction of a loyalty oath as prescribed, for instance, by the US legislation. The compromise reached provides for a formal declaration at the occasion of receiving the naturalisation certificate.29 It is in dispute whether the formal declaration is a requirement of validity of naturalisation, as the explanatory report of the draft suggests,30 while the wording of the provision is not altogether clear since it says that naturalisation becomes valid by the handing out of the naturalisation certificate. Since it is very unlikely that the certificate will ever be passed on without the formal declaration, the issue seems to be more of a theoretical nature (for a discussion see Sturm 2008: 135; for a different view Berlit 2007: 467).

A minor change concerns the right to naturalisation of former Germans living abroad. Previously, the privileged access to naturalisation of former Germans was applicable to their

28

See 7th report of the Beauftragte der Bundesregierung für Migration, Flüchtlinge und Integration, December 2007, p. 145.

29 _{In German: ‘Ich erkläre feierlich, dass ich das Grundgesetz und die Gesetze der Bundesrepublik Deutschland} achten und alles unterlassen werde, was ihr schaden könnte.’ (I hereby declare that I will respect the Basic Law

and the law of the Federal Republic of Germany and omit everything which could cause damage to the Federal Republic of Germany), see Sec. 16 of the nationality law.

descendants as well as adopted children regardless of their age provided that they fulfilled the minimum requirements of discretionary naturalization according to section 8 of the nationality law. According to the amended Section 13 of the nationality law only minor children are entitled to the privileged naturalisation procedure since the federal legislator came to the conclusion that there is no public interest in facilitating the naturalisation of adult descendants of former Germans living abroad.31

Minor changes concern the establishment of a register storing all decisions relating to nationality. By a new provision a legal basis has been created for the storing and processing of decisions relating to the acquisition, existence and loss of nationality, embracing as well the storing of decisions after 31 December 1960. The Bundesverwaltungsamt is responsible for maintaining the register. All nationality authorities are obliged to transmit the relevant personal data on decisions relating to nationality to the register. The nationality authorities are, in

addition, obliged to inform the foreign representations of the Federal Republic as well as the local authorities about a naturalisation or loss of nationality. The legislative purpose is to avoid mistakes in the establishment of voter registers or the issuance of passports as a result of a loss of German nationality (as was indicated at a public hearing in the Interior Committee of the Bundestag at 23 May 2007). 32

The acquisition of German nationality of foreigners by birth on German territory on the basis of section 4 para. 3 is also registered on the basis of a new provision in the birth register, in which the birth of a child is documented.33 Contrary to a proposal by the Bundesrat34 this ratification, however, does not contain proof for the existence or non-existence of German nationality.35

The 2007 reform legislation introduces a new administrative procedure on the

determination of the nationality status of a person by application or in the case of a particular public interest. The ex officio procedure maybe started with the purpose of determining formally the nationality status of a person by the nationality authorities. The certificate on existence or non-existence of German nationality has binding force and is subject to appeal. The burden of proof is on the applicant who claims to posses the German nationality. Only in case of a loss of German nationality is it with the nationality authorities to prove the loss of German nationality.36

31 _{See BT-Drs. 16/5065, p. 230.}

32 _{In the 42nd session, protocol No. 16/42, p. 60 it has been criticised that the creation of a central register was not}

necessary and that it would be sufficient to update the registers on the civil status of persons

(Personenstandsregister), see also 7th report of the Beauftragte der Bundesregierung für Migration, Flüchtlinge

und Integration, op. cit. December 2007, at p. 47.

33 _{Personenstandsrechtsreformgesetz of 19 February 2007, BGBl. I, p. 122.} 34

BT-Drs. 16/5527, p. 11.

35 _{For a critical comment see Sturm, Das Standesamt, op. cit. at p. 138, who refers to the legislation of other legal}

systems defining the legal status of persons also with regard to nationality.

2.5 Most recent amendments of nationality law up to February 2009

The law on amending the nationality law of 5 February 200937 is primarily a reaction to

decisions of the Federal Constitutional Court and the Federal Administrative Court on the legal requirements for withdrawing German nationality due to fraud or deceit and to the legal effects of an ex lege loss of nationality or withdrawal of nationality for descendants. Until February 2009 no provisions were laid down in the German nationality law relating to the withdrawal of German nationality or the legal effects of a loss or a renunciation of nationality for descendants. The Federal Constitutional Court in its ruling of 24 May 200638 had to decide whether

nationality authorities could rely on the general provisions of the Administrative Procedure Act on withdrawal of administrative acts in order to withdraw a naturalisation which had been effected on the basis of intentionally wrong information. The Court in principle decided in favour of the constitutionality of the application of these provisions to withdrawal of nationality. Since withdrawal of nationality may have effect on other persons, in particular descendants, the Court requested legislative rules for the solution of problems relating to the withdrawal of a naturalisation.

A second ruling of the Constitutional Court39 dealt with the retroactive loss of German nationality of a child as a result of a successful judicial appeal determining that the applicant was not the father of the child. The Constitutional Court declared the retroactive loss of German nationality of the child as constitutional since the minor child was at an age at which it could normally not develop a legitimate trust on the existence and continuity of its status as a German national. However, the Constitutional Court warned the legislator that this decision could not be generalised and that it would depend upon the circumstances of each case whether a retroactive loss of German nationality in such cases would be facing constitutional limits.

A parallel question arose with regard to the withdrawal of a residence permit as a result of fraud with legal consequences for the ius soli-acquisition of a child of the person deceiving the authorities.40 The problem of the legal effects of withdrawal of a naturalisation, that is, loss of German nationality for descendants, has been solved by introducing a five-year-requirement. Children may only lose German nationality until they have completed the fifth year of age. The legislator in imposing the five-year age-limit has relied upon the constitutional argument that in general children below the age of five have not yet developed their own consciousness of their German nationality and therefore the constitutional prohibition of renouncing German

nationality (Section 16 para. 1 of the Basic Law) did not apply. According to Section 17 para. 3 the five-year rule is also applicable with respect to administrative decisions on the basis of other laws with retroactive effect on German nationality of third persons. The law explicitly mentions the withdrawal of a settlement permit, the withdrawal of a certificate according to Section 15 of the law on expellees of German decent and with respect to the non-existence of fatherhood according to Section 1599 of the Civil Code.

A second amendment concerns a new provision on withdrawal of illegal naturalisations or illegal permits to maintain German nationality in the case of acquisition of a foreign

nationality. Such administrative decisions can only be withdrawn if the administrative act has been achieved by wilful deceit, threat or corruption or by intentionally incorrect or incomplete submission of information essential for the adoption of the administrative act. The law

explicitly provides that withdrawal is not excluded by the fact that the affected person may

37

BGBl. 2009 I, p. 158.

38 _{2 BvR 669/04.}

39 _{Decision of 24 October 2006, 2 BvR 696/04.}

become stateless as a result of losing German nationality. There is, however, a time limit according to Section 35 para. 3 of five years. If the withdrawal of the naturalisation or the permit to maintain German nationality has legal effects upon the legality of administrative acts based upon the nationality law relating to third persons, the nationality authorities have to pass a discretionary decision on the withdrawal or non-withdrawal of such administrative decisions. Relevant aspects are a possible participation of a third person in the wilful deceit, threat or corruption or in the intentionally incorrect or incomplete information. These aspects have to be balanced with legitimate concerns of the third person, in particular the legitimate interests of children.

An additional provision introduced a new criminal sanction for persons providing incorrect or incomplete information of essential importance for a naturalisation proceeding or persons using such information to achieve for themselves or for other persons a naturalisation.

3 Current citizenship regime 3.1 Modes of acquisition and loss

A major purpose of the 2000 law, supported by the ruling Social Democratic party and the coalition partner Bündnis ’90/Die Grünen as well as the liberal party, was the promotion of acquisition of German nationality for migrant workers and their second and third generation descendants as an essential prerequisite of their integration into the German society. Until 1 January 2000 one of the predominant features of German nationality law and practice, although not explicitly laid down in the law of 1913, had been that acquisition of German nationality through naturalisation was an exception, rather than the rule.

One of the main novelties of the 1999/2000 reform was the introduction of the ius soli principle in para. 4 of the law. Children of a foreign parent acquire German citizenship on condition that one parent has had a lawful habitual residence in Germany for eight years and that he or she is in possession of a secure residence permit. Since January 2004, the threshold has been raised for the acquisition under ius soli by requiring a settlement permit or, in the case of EU citizens, a right to free movement. Since the settlement permit requires a higher level of knowledge of the German language than previously and the possession of an unlimited

residence permit, which until 2004 had been sufficient for naturalisation, ius soli acquisition will only take place in the case of a high degree of integration of a foreign parent.

Another major feature has been the facilitation of naturalisation. A foreigner is entitled to naturalisation after a habitual lawful residence of eight years rather than fifteen years as previously. In addition, naturalisation depends upon a number of requirements, including a declaration of loyalty to the free and democratic constitutional order, possession of a regular residence permit or freedom of movement as an EU citizen, or an equally privileged right under the EEA Agreement. In addition, the foreigner has to prove the ability of earning a living without any recourse to social welfare or similar social benefits (unemployment assistance), absence of a criminal record and the renunciation or loss of a previous nationality.

The Immigration Act of 2004 has slightly changed the requirements of naturalisation by declining a right to naturalisation in the absence of sufficient knowledge of the German

language and the existence of facts indicating that a foreigner supports or engages in unconstitutional political activities or is subject to expulsion due to a terrorist affiliation.

One of the central issues of the new German nationality law of 1999/2000 was that of dual nationality, the avoidance of which had hitherto been an essential element of the German nationality law.

Following a highly emotional debate on dual nationality, the reform of 1999/2000 maintained the principle of avoiding dual nationality. To a certain extent it takes into account the interests of the immigrant population in maintaining their previous nationality by providing for a large number of exceptions to the requirement of relinquishing a prior nationality. The general rule is that a foreigner is not obliged to renounce his or her previous nationality if renunciation entails serious disadvantages or is dependent upon particularly difficult conditions. Therefore the nationality law closely follows the pattern of other European states by admitting dual nationality more generously.

Due to the fact that children usually acquire the nationality of their parents by descent, the introduction of the ius soli principle will entail at least dual, if not multiple nationalities for foreign children born in Germany. Since the issue of dual nationality has turned out to be a highly controversial concept, the new law uses the ‘optional model’, which obliges foreign children to decide by the end of their eighteenth year which nationality to keep and which to renounce. If they declare the wish to keep the foreign nationality or if they do not declare anything by the end of their eighteenth year, German nationality will be lost within a specified period of time. If they declare an intention to keep German nationality, however, they are obliged to prove the loss or renunciation of their foreign nationality, unless the German authorities have formally approved the retention thereof. The permission to retain the former nationality will be granted if renunciation of the foreign nationality is either impossible or unreasonable, or if multiple nationality would have to be accepted according to the general rules on naturalisation.

In order to limit dual nationality, further amendments concerning the loss of German nationality have been adopted. The first one effects the abolition of the so-called national clause (Inlandsklausel). Since 1 January 2000, the acquisition of a foreign nationality based on an application leads to the automatic loss of German nationality even if the national retains domicile on German territory. In contrast, according to the former legal situation, German nationality was lost only when the national did not keep his or her habitual residence in Germany (see Section 25 para. 1 of the Imperial Nationality Act). 41 Second, automatic loss of German nationality also results from voluntary entry in a foreign army without permission of the German Ministry of Defence, if the national possesses the nationality of this foreign state in addition to his or her German nationality.

Apart from these amendments, the modes of losing German nationality were not affected by the reform of 1999/2000. German nationality is lost by release from citizenship upon request if a person has applied for the acquisition of a foreign nationality and when the conferment of this nationality is assured; by voluntary renunciation of German nationality by a dual or a multiple national; or by adoption by a foreign national if the foreign nationality is thereby acquired.

The traditional modes of acquisition of German nationality have also remained largely unchanged. German nationality is basically acquired by descent from a German mother or a German father, by legitimisation, by adoption or by naturalisation. In the absence of a marriage, descent from a German father requires a formal procedure to determine fatherhood or a formal recognition of fatherhood. The abuse of this instrument by providing false declarations of

parenthood has recently prompted the legislator to introduce a procedure to challenge the recognision of parenthood.42 By this law the legislator has established a possibility to challenge a recognition of parenthood by the competent authorities in order to prevent an intentionally false recognition of parenthood for the purpose of achieving a residence permit.43

Spouses of German nationals are entitled to naturalisation on the condition that they renounce their previous nationality unless there is a reason for acceptance of dual nationality and if certain integration requirements are met. According to the administrative practice a resi-dence of three years is required and a marriage of two years. The applicant must be able to express him- or herself in the German language.44

The most important change in the reform legislation can be found in the changed perception of the acquisition of German nationality. Since 1 January 2000, naturalisation and acquisition of German nationality is considered as being in the public interest of Germany rather than as an unavoidable fact. This change in nationality law also reflects a substantial change in the perception of migration. The original assumption that the migrant workers recruited in the early 1970s would eventually return to their home countries has been

abandoned. Only about 12,000 to 17,000 persons were naturalised each year from 1974 until 1989, in spite of an increasing number of persons having their permanent residence in

Germany. This situation changed substantially with the new Nationality Act giving a legal right to naturalisation if certain conditions were fulfilled. As a result, the number of naturalisations went up substantially since the new law entered into force (see Section 6.3.2).

With the Immigration Act of 2004 (Zuwanderungsgesetz) some amendments have been introduced in order to take account of the new integration requirements introduced by it as well as the security considerations resulting from the anti-terrorism legislation following 11

September 2001. Under Section 11 StAG the right to naturalisation is precluded if a foreigner does not have sufficient knowledge of the German language and if there are sufficient facts indicating that the foreigner is engaged in or supporting activities directed against the free democratic order or the security of the Federal Republic or a Land, or if an applicant is

intending unlawful disruption of the functioning of the constitutional organs of the federation or a Land or their members, or is endangering by use of force or preparatory actions the external affairs of the Federal Republic of Germany. A similar exclusion clause applies in the case of participation in terrorist organisations or support of terrorist activities.

According to Article 116 of the Basic Law, ethnic Germans expelled as a result of post-war measures as well as their families, relatives and descendants are entitled to privileged acquisition of German nationality. The details are regulated by the Federal Expellees Act (Bundesvertriebenengesetz) since 19 May 1953. Between 1950 and 1987, a total of

approximately 1.4 million ethnic Germans and their family members entered Germany, mostly without major integration problems. The law is inseparably connected to an assumption of persecution of ethnic Germans who were expelled after the Second World War and their family relatives. Contrary to a frequently-made assumption, there is no acquisition of German

nationaly for persons of ‘German ethnic origin’ as such. The law is therefore becoming obsolete with the disappearance of the consequences of expulsion for the second and third generation of expelled persons.

With the large increase of the number of immigrants of German ethnic origin as a result of the liberalisation and democratisation in the Eastern Bloc, substantial changes were made in

42 _{Gesetz zur Ergänzung des Rechts zur Anfechtung der Vaterschaft of 13.3.2008, BGBl. I p. 313.} 43 _{BT-Drs. 16/3291, p. 9.}

the law in order to gain more control over the immigration patterns of ethnic Germans. In 1993, an annual quota of 225,000 was introduced and on 1 January 2000 the quota was reduced to around 100,000 persons, a figure corresponding to the number of ethnic Germans entering Germany in 1998. In addition, prior to entry, a German language test was introduced. Until 2000, ethnic Germans possessing the legal status of a German without German nationality under Article 116 para. 1 of the Basic law were entitled to naturalisation on the basis of their admission to German territory. Since 1 January 2000, repatriated Germans and their spouses and children acquire German nationality automatically by entering German territory on the basis of a previous admission title.

After 2000, the composition of the category of repatriate Germans (Aussiedler) changed as only a few of the family relatives and their descendants tended to be of German ethnic origin as well. Since family members did not have to prove sufficient knowledge of the German language in the admission procedure, unless they applied for repatriate status themselves, an increasing percentage of repatriate Germans did not have sufficient command of the German language and were therefore subject to social marginalisation. In the new Immigration Act of 2004 the provisions of the Federal Expellees Act were changed by introducing a condition of proof of basic knowledge of the German language for German spouses as well as non-German descendants45 intending to acquire German nationality based upon the special provisions of the Expellees Act and the Basic Law.

As a result, the number of repatriate Germans entitled to German nationality went down substantially. In 2006 only 7,626 persons from the former Soviet Union moved to Germany as compared to 35,369 in 2005. Only 1 out of 8 applications has been successful as compared to 2 out of 3 applications in the years before the entry into force of the Immigration Act 2004.46

In 2006/2007 the political debate on the increased recognition of dual nationality in the Germany nationality law, and the facilitation of naturalisation of foreigners recruited by post-war agreements on Gastarbeiter and their descendants to the second and third generation, was revived in the context of a general debate on the success or failure of integration efforts.

Particularly troublesome was the question of to what extent sufficient knowledge of the German language and basics of the German constitutional order and political system should be required in order to become a German national. A highly controversial debate arose about various proposals by the Länder to introduce naturalisation tests requiring proof of a sufficient

knowledge of the German politics, history and culture as well as administrative guidelines for naturalization authorities in Baden-Württemberg to examine doubts as to the constitutional loyalty of applicants for naturalisation.

The different practices in the Länder concerning the necessary standard of knowledge of the German language in reading and writing became a matter of intensive public debate

regarding the relevance of insufficient knowledge of the German language as a reason for the economic failure of substantial parts of the juvenile foreign population in the labour market. The decision of the Federal Administrative Court of 20 October 200547 dispensing to some extent with a requirement of knowledge of the written German language was one of the reasons for a legislative amendment in 2007. Another was an ongoing controversy within the

jurisprudence on the question of withdrawal of naturalisations. The Federal Constitutional Court’s ruling of 24 May 200648 upheld the existing administrative practice of withdrawing naturalisations on the basis of general rules of the Administrative Procedure Act; with regard to

45

The status ‘ethnic German’ according to Art. 116 of the Basic Law is not transferred to descendants.

46 _{Immigration Report for 2006, 1st ed. December 2007 at p. 50 ff.} 47 _{BVerwGE 124, 268, 273.}

the legal effect of such withdrawals for spouses and descendants the Court requested the legislator to provide for rules taking into account the different public and private interests at stake.

Political analysis

Although there was a basic consensus among the major political parties that the integration of the foreign population, recruited in the 1960s as migrant workers, and their descendants, had been largely neglected in the following decades, no agreement could be reached on the role of naturalisation and the acquisition of German nationality in the process of integration. While the ruling Social Democratic Party in 1999 considered the acquisition of German nationality to be an essential instrument in achieving integration, the opposition Christian Democratic Parties (CDU/CSU) argued that naturalisation should complete the process of integration rather than pave the way towards it. The disagreement focussed upon the issue of dual nationality. While the Social Democratic Party and its coalition partner, Bündnis ’90/Die Grünen, with the

assistance of the Liberal Party, advocated a concept of toleration of dual nationality based upon a dual attachment to different nations and dual cultural and political ties, the opposition parties maintained that dual nationality was a typical indication of a lack of integration and an

unwillingness to accept requirements of loyalty and identity attached to a more traditional ethno-cultural concept of nationality. The German public appeared deeply divided over the issue. While a clear majority of the mass media as well as the churches and humanitarian organisations were in favour of multiculturalism and dual nationality, the German population became increasingly critical about a substantial increase of dual nationals resident in Germany. Surveys showed that a majority supported easier access to German nationality, but opinions were deeply divided on the issue of whether this should be achieved by introducing elements of ius soli and/or accepting dual nationality.

Against this political backdrop legal disputes arose about the impact of constitutional law and international treaties, such as the Council of Europe Convention on the Reduction of Dual Nationality of 1963. The doctrine of avoiding dual nationality had been frequently put forward as an argument based on constitutional and international law. Although the

Constitutional Court stated in its decision on the voting rights of aliens that dual or multiple nationality is regarded as an evil that, if possible, should be avoided or eliminated, in the

interest of states as well as in the interest of the affected citizen, the Court clearly had argued on the basis of the then-existing law, shared by the obligation of the European Convention of 1963 as well as by the traditional German concept of nationality. Supporters of a reform legislation have argued that the traditional arguments voiced against dual nationality do not outweigh the need to integrate second- and third-generation foreigners into the political system of the Federal Republic of Germany. As a more practical argument in favour of dual nationality, one may point to the increasing number of dual nationals, particularly as a result of a large number of mixed marriages and naturalisations, who during the validity of the nationality law of 1913 were in fact living in Germany and have not created any substantial problems in the application of international treaties or in the exercise of diplomatic protection. There is in fact no precise account of the exact number of dual nationals who acquired German nationality simply on the basis of descent from a German parent or by naturalisation. One argument put forward in the political debate was that almost all Germans repatriated on the basis of Article 116 of the Basic Law as expelled Germans of ethnic German origin had acquired German nationality,

maintaining as a rule their previous nationality of the USSR or the 1990 successor states of the USSR. One could also point to the fact that an original provision on the registration of dual